Alex Rodriguez Sues Bud Selig, Updated

Alex Rodriguez has filed new law suits in New York State Court. The first suit names Bud Selig, MLB, and the Office of Commissioner and the claims made are numerous and suggest a pattern of conduct that is troubling if true.  A second suit was filed againsst the Yankees’ doctor and a hospital for mis-diagnosing a hip injury in 2012.  I will not consider that suit in this article.

The main case, Alexander Emmanuel Rodriguez, plaintiff v. Major League Baseball, Office of Commissioner of Major League Baseball, and Allan Huber “Bud” Selig, defendants, was filed in the County of New York on October 3, 2013.  My cursory examination of the case reveals that it is an attack on Bud Selig’s tenure as Commissioner. It says Selig condoned illegal drug use when it was useful to him and then was against it when that position was deemed beneficial.  In Section B of the law suit, (page 6), the heading is The Disastrous Tenure of Commissioner Selig. The suit describes the collusion scandal, the PES scandals, the Mitchell Report alledging lack of supervision and failure to see early warning signs of drug use. It then states that the Rodriguez case, indeed the entire Biogenesis case, is an effort by Selig to reinvent himself and create the myth of his being the savior of baseball.  Selig has announced his retirement in 2014.

Lester Munson at ESPN has besmirched the law suit as being insubstantial because of the tortious interference claim. Munson claims tortious internference is the least of the tort claims. I don’t know where he gets his advice, but it is very different from my experience that makes a tortious interfernce claim very real and dangerous for the defendant.

There will be a lot of information about this case, but it is very dangerous for Baseball and for Bud Selig. The outcome will be based on the evidence Plaintiff has, and, from what I have read today, they have done a lot of homework.

Update: The first issue to be decided in this case is whether the court has jurisdiction over the matter or whether the Grievance Procedure in the collectively bargained agreement controls. If the later is the case, Rodriguez must follow that course.

New York Yankees and the Wild Card

I just noted  that the NY Yankees are 3.5 games behind in the Wild Card race in the American League.  This team has been playing better since the Alpha player, Alex Rodriguez,  has returned to the pack. 

The schedule works for the Yankees in the final 35 games. They play twenty games against the teams ahead of them, Boston, Tampa Bay and Baltimore and fifteen games against teams that are in last place in their respective divisions. These teams are San Francisco, Chicago White Sox, Toronto and Houston. Boston has six such games, Tampa Bay three, and Baltimore six  games. If the Yankees win half the games against the better teams and dominate the bottom teams, a very likely outcome, they will be the second wild card, at least. NY is 12-1 against Toronto this year, for example.

This will be a shocking outcome to the Alex Rodriguez drama, as it will be the his return that made the difference. If Jeter can also play, watch out.

The Truth About MLB Free Agency

My friend, Murray Chass, ( has posted an article in the New York Times that properly describes the history of MLB free agency. I was involved in this matter as well. The historical error often cited in this matter is that the Flood v. Kuhn Supreme Court case was important, and, as Flood lost the case, it was important only in that it gave MLB a false sense of security in the court process. The Jim “Catfish Hunter” case is also erroneously cited, but that was a breach of contract case and had nothing to do with labor law.

The error in the Messersmith/McNally case was that MLB did not understand the role of the arbitrator, Peter Seitz, and the deference shown arbitrator decisions by federal courts. Baseball always thought it could have a decision overturned if it was adverse to them. MLB was wrong.

Arbitration is a contractual relationship between the parties where they agree that a conflict will be decided by an arbitrator according to rules that are, in the case of labor matters, collectively bargained. This agreement controls the outcome and it can be reversed only if the arbitrator can be shown to have acted badly by not disclosing conflicts of interest, bias, or a flagrant disregard of the law. The test is whether “the decision draws its essence from the contract.” Not a hard test, as history has proven.

None of these factors were present in the Messersmith/McNally case and Peter Seitz’s decision that created free agency was upheld by the federal court of appeals sitting in Kansas CIty. The rest is history, but MLB’s failure to understand labor law would again bite it when it failed to properly declare impasse in 1994, the year of no World Series, that lead to then Judge Sonya Sotomayor’s decision against it in a labor case in March 1995.

We are now looking at the arbitration of the Alex Rodriguez 211 game suspension and will find out if anything has been learned.

Human Growth Hormone, Testosterone, Biogenesis and the MLB Supplement Game

MLB is trying very hard to rid itself of performance enhancing drugs. It has banned a long list of steroids and other products. Recently, Commissioner Selig has suspended 13 players for between 50 games to 211 games for Alex Rodriguez, the Yankees third baseman. These suspensions were based on evidence of drug use obtained from the records of Biogenesis, a Miami Youth Clinic.

Last night at dinner with my friend, Jeff Husband, I decided to get the story from him. Jeff is a noted orthopedic surgeon at Tria and one of the leading hand surgeons in the country. (I learned that from another friend who told me she had been operated on by the “leading hand surgeon, Jeff Husband”.) I asked Jeff just what it was that Biogenesis was giving these players. He then explained the Human Growth Hormone (hGH) and testosterone therapies that Biogenesis offered. He said this sort of therapy was common.  For example, hGH had legitimate uses but he was not sure of the beneficial effect in athletics. For a description, look here.

For testoterone, again the benefits are increased strength, lean body mass, and endurance, but the potential side effects, he mentioned many, were very dangerous. For a description look here. However, it seems that players are very eager to take these supplements to enhance performance, and they think it works. What is it that the players seek that causes them to risk life, health and their careers by using these products?

The simple answer is “Youth.” We all think of that and recall some point in our lives that we would like to return to, but most of us recognize that there are benefits to maturity, as well, and we bask in those benefits. For a baseball player, that point in time is when they were 27 and they were at the peak of their perfomance. If they can maintain that level for just a few years, they will have signed a multi-year, mega-million dollar contract, and can then stop using. It is a very enticing prospect and one that is hard, if not impossible, to resist.

Jeff and I are not immune to that prospect, and, some years ago, we started using a product called Protandim. My introduction to Protandim occured while lawyering a stock trade for one of the inventors of the product.  I found it to be beneficial. Then the stock deal tanked and I ended up defending a client in a suit brought by the inventor. Now Protandim was supposed to be a magical combination of herbs and spices, that working synergistically, cured all ills, The formula was secret as to the ratio of the various ingredients, but they were listed on the package.

During the pre-trial discovery process, I deposed the inventor and came away with the impression that there was no way this fellow was ever going to invent anything of scientific merit. I then looked at the product and investigated the ingredients, mainly Turmeric, see here . I found that the beneficial effect of the product was due almost entirely to the large amount of Turmeric, an Indian spice in the Ayurvedic tradition, that it contained. I now know others who have discovered Turmeric.

The point of this story is to point out that the search for youth is not just for athletes, but for all of us. Protandim is sold in a multi-level distribution program that is very popular.

A quick search of the web disclosed a multitude of such products, each offering the benefits that the baseball players were seeking from hGH and testosterone at clinics like Biogenesis. The search will continue as it always has, I only hope for good outcomes and the avoidance of the dangers of overuse, which are ever present. Sports must maintain its vigil, abusers suspended and others educated. I hope for sucess in this area soon.

NY Daily News Links Alex Rodriguez and Victor Conte

The New York Daily News here wrote about a meeting between Alex Rodriguez and Balco founder, Victor Conte who spend four months in jail for his connection to illegal steroid distribution to athletes, Marion Jones, Barry Bonds and Jason Giambi. The meeting took place in San Francisco in May 2012. Conte told Rodriguez that he could only offer legal supplements and commented on a blood test. He then sent Bonds supplements that he creates at SNAC, his supplement company. Thus story only adds to the story of how Rodriguez was seeking enhancement from different sources and Conte would only supply legal products. In fact, after looking at the product labels, these are products that I can buy at  here in Minneapolis while eating vegan chili. The only new story is Conte’s marketing genius in linking his products to Rodriguez.  I am sure sales will be brisk this week.

MLB, Alex Rodriguez, and the Reason Rules Are Important

Sports leagues, like MLB and the NFL, are run according to rules that create the values they sell. This is the essential element in their operation and one that must be protected with vigor. Why is this? Some ask why the use of drugs is a problem anyway. The analysis of this issue starts with an examination of what is the product sold by these leagues.

The basic element of the product is a game played according to a set of rules. The value of a game is based, first, on the league it is being played in. This is the trademark value of the league. All fans recognize that the price, hence value, of their ticket, starts with the league. A NFL ticket is worth more than a high school ticket. Second, the value is based on the quality of the play, the skills of the players and the rules that control the operation of the league and the play of the game. These rules, roster limits, player eligibilty, selection (drafts etc.), transfer and playing rules are all aimed at creating a system where there is competitive balance among the teams. Success is based on the skills of the executives who implement the rules and select the right players, but the rules also limit their ability to dominate by being too successful. Third, the reason these rules, and rules banning performance enhancing drugs are part of this, are important in that it is through these rules, competitive balance is assured so there is value to the game, and this value is based on the fact that the outcome of the game, even one between the Houston Astros and Boston Red Sox, is in doubt.

The outcome’s being in doubt is what separates sports from other forms of entertainment, like theater. There is no doubt that King Lear will die at the end, and fans do not attend Lear in the tens of thousands as they do in sports. (If Lear, from time to time, rallied to recover his throne, attendance may be improved!)

This gets us to MLB’s suspension of Alex Rodriguez and a dozen other players for the illegal use of performance enhancing drugs. The outcome of the game must be based on a player’s natural skills and not the skils of some chemist. By imposing these rules by suspendiing players, MLB is protecting the sine qua non of its existence, competitive balance that is undertood to be fairly achieved.

The imposition of these penalties is important and the only question is whether they are severe enough to actually deter the illegal action.
If this were the Olympics, the players would be automatically suspended for two years for the first offense. In baseball, the first suspension is for 1/3 of the season, the second for 5/8th of a season. Only a third positive test results in life time suspension. In the era of multi-year contracts, anything less than a lifetime ban is meaningless.

Baseball has a rule calling for a lifetime ban for gambling, Pete Rose, for example, and no one gambles in baseball. The game’s integrity is protected by that rule. Maybe it is time to do the same for drug cheaters.  We are dealing with the value of a game and that is all they have, so it is time to impose the rule that wipes out the multi-year contract. That will be effective in ending this curse.

MLB, New York Yankees, and the Alex Rodriguez Drama

The baseball world is waiting for the long anticipated release of the names and penalties to be assessed against MLB players who obtained performance enhancing drugs from the Miami clinic, Biogenesis. None of the players failed drug tests, as all charges are based on non-analytical positive evidence such as oral testimony, emails and records obtained from Biogenesis.

Alex Rodriguez is the most well known of the players, but Jhonny Peralta, the Tigers shortstop, is thought to be one of them and the Tigers have already traded for a replacement, but back to ARod.  This is the most interesting case as he admitted steroid use while with Texas and has been accused of such behavior before the Genesis deal. He is said to have recruited players for Biogenesis, which is another crime, as they say.

ARod could face a lifetime suspension, so he is trying to negotiate with MLB for a lesser sentence. It was said today, that MLB is not negotiating so much with ARod as they are negotiating with the Yankees. This raises interesting issues that I find troubling. The evidence is in and MLB has it. It must apply the rules to all players and do so without inquiring of the player’s team as to what it wants to achieve. For example, say the Yankees say “we want him for the rest of this year, but want his remaining $100,000,000 contract blocked for life.”  That would mean that MLB would suspend     Arod for life, but, because he can appeal his suspension, he could play next week.  Similarly, other teams may want the player, Peralta, for example, could appeal a suspension and finish the season, or accept a fifty game suspension and be eligible for post season. The timing of this is not by chance!

If Arbitrator Horowitz upholds a life time suspension, both the Yankees and MLB win. If he limits the suspension to a year, for example, ARod wins, and MLB’s drug testing program is impeded as to future suspensions. In this decision, the Arbitrator will look at other lifetime bans, Pete Rose and Shoeless Joe Jackson, for gambling, for example. I believe that gambling is an attack on the underlying integrity of the game and is the most serious offense against the game as that directly effects the outcome of the game, and has a negative impact on fans who want to trust the outcome is legitimate. This is not to diminish the PED effect, but the Arbitrator will also look to other drug cases, Steve Howe for example, where a lifetime ban was overturned by Arbitrator Nicolau, because MLB did not offer drug treatment. (Howe’s drugs of choice were primarily cocaine and marijuana.)

There is another factor in the ARod case. The Commissioner has power to by-pass the appeals process and suspend for life “to protect the integrity of the game.” Here the risk is that a court (or an arbitrator, I will have to check the proceedural rules) will find the penalty excessive and over turn it.
Furthermore, and this may be the most important factor, is that taking away a player’s appeal rights that exist in the basic union contract is to invite war with the Player’s Association which had been compliant with the suspensions as long as suspension appeal rights were not limited. This could be very damaging.

All in all, this will be a very interesting week. ARod will appeal if suspended and play for the Yankees this week or he may negotiate a deal and accept a lesser penalty. That case will then control drug penalty cases in the future. The Commissioner will be very careful as well, as his power is at risk. Maybe it is better to save that for gambling cases in the future.

MLB is now taking a strong stance against drug use, and, as Henry Aaron is thinking, it is about time.

Alex Rodriguez, Biogenesis and MLB

Alex Rodriguez is a third baseman, from time to time, for the New York Yankees.  He was named in Biogenesis documents and other testimony as a user of performance enhancing drugs, one of these players, Ryan Braun, of the Milwaukee Brewers, was suspended for the rest of the 2013 season on a plea bargain last week.

The case against Rodriiguez is based on “non-analytical positive” evidence. This is evidence other than a positive drug test and includes oral testimony, documents, emails and the like. This sort of evidence was used by the United States Antidoping Agency in its succesful case against Lance Armstrong and is commonly used in Olympic and other doping cases.

What is significant here is MLB’s strong stance against doping. Over the long period that steroids have been present in the game, MLB has taken a soft position and the union has presented obstacles to a real doping policy. In fact, the union took the position that “steroids are no more damaging to a player than smoking.”  This lead to the soft position on Barry Bonds following the BALCO scandal.

Now, however, MLB is taking the hard position and is considering a lifetime ban on Rodriguez based on his admitted PED use in the past that constitutes the three uses that allows such a ban. Rodriguez will appeal such a ban to Arbitrator Horowitz. Commissioner Bud Selig has said he may invoke special powers to by-pass this step under his “integrity of the game” authority.  This marks a signiificant escalation in MLB’s scrutiny of doping and is allowed by public comments by players that they want the game cleaned up. The player sentiment is what gives MLB management the sense that this sort of action will be effective, and causes the union to be realistic.

This is all very good, but we can all lament the fact that it has taken so long. Baseball’s most cherished records for single season and career homeruns have been lost to a serial doper. At least it is taking the proper action now.

The Los Angeles Angels and Free Agent Signing Errors

The Los Angeles Angels just traded their best relief pitcher, Scott Downs, for a minor league reliever. This is the sign of a team that has given up on 2013 and is looking forward to better days. The Angels plans are made more difficult by a signing error in 2011 when they signed Albert Pujols to a 10 year $240,000,000 contract that ends with escalating payments. They then signed Josh Hamilton to a 5 year $125,000,000 contract this year.

In March, I predicted that the Angels with Trout, Trumbo, Pujols and Hamilton would win the AL West. Today, they are 14 games behind Oakland and eight games under. 500. It is a disaster. My prediction failed as I over estimated the adequacy to the Angels’ pitchng and did not recognize the rapid decline in Pujols’ performance and Hamilton’s collapse. Hamilton is a psychological case.

Pujols decline is classic baseball decline and was predictable due to physical factors.  First, he hit his peak when he was 28 in 2008. It is shibboleth among baseball purests that a player peaks at 27. His decline in batting average has been 2008, .357,  .327, .312, .299, .285, and .258 this year. He has been troubled by plantar fasciatis this year as well. His OPS (slugigng plus on-base percentage), a statistic some think is indicative of true value,  has similary declined as follows,  2007, .997, 1.114, 1.101, 1.011, .906, .859, and .767 this year.  The numbers at age 27-28 are dramatic and rank with baseball’s great players, but that was then.

The undeniable fact that players performance declines after age 27-28 begs the question of why a team would sign a player to a multi-year, escalating payment contract for what must be declining performance. The Alex Rodriguez contract with the Yankees should have been instructive here, but it seems Angels’ owner, Artie Moreno, wanted to be like the Yankees by signing Pujols and then Hamilton. If he was looking there for guidance on how to run a team, he looked in the wrong direction, but then again his team had recently lost to the Yankees in the layoffs.

The proper place to look was a few hundred miles north to Oakland or to Tampa on Florida’s west coast.  Those two teams are in first place in their divisions with modest payrolls, but balanced, performing teams.  Moreno has become like the Yankees, who are in fourth place, as are the Angels, even though playing +.500 ball. The Angels winning percentage is 11th in the American League.  The real test in these signings is the reaction of the player’s former team to the player’s departure. The Cardinals seemed to be interested in re-signing Pujols, but dropped out of the bidding. The Cardinals, one of baseball’s best organizations, is 19 games over  .500 in first place in the NL Central and Hamilton’s former Rangers team is eight games over  .500, but trail the A’s for first.

This gets to the basic error in the Pujols signing. No one player makes a baseball team. A single player can only come to bat 11% of the time. Teams are a combination of pitching, fielding, and batting. Too much batting was expected from an aging star.

The rule that a team “shouldn’t get hit by a falling star” has slammed the Angels. I was overly impressed by the Angels offense last March, and have learned  a lesson. I imagine Artie Moreno has learned the same lesson.

Ryan Braun’s Plea Bargain

MLB allowed a plea bargain in the first of the Biogenesis cases. (see article on this blog for June 16, 2013) This was the result of two meetings between Braun and MLB. At these meetings, Braun did not offer testimony, he was simply presented with MLB’s evidence. He agreed to a 65 game, or rest-of-the-season suspension.
As described earlier here, the evidence was non-analytical positive evidence much like the evidence used in USADA’s case against Lance Armstrong.
This evidence is other than drug test evidence but is equally effective in determining use, hence, a violation of the MLB drug use rules.
The most curious part of this is that even with the evidence, MLB chose to bargain for what it could get and did not simply suspend Braun to the limits of the rule,  possibly 100 games.
The reason for this is that MLB has had a difficult time with arbitrators in such cases. The most notable is the Steve Howe case where an arbitrator denied efforts to suspend for life a player whose drug use was epidemic on the basis of a failure to provide counseling instead. Last year, Braun was accused of positive drug test violations and the arbitrator dismissed the case based on a chain of custody error.
To avoid such an outcome again, MLB is bargaining over suspensions. Braun will lose $3.25 million in salary this year, but retains the more than $100,000,000 left on his contract with the Milwaukee Brewers. The question I want answered is whether the Brewers are planning to attack his contract itself, claiming breach on the theory his drug use was a violation of that contract.
The plea bargain process is underway with the approximately two dozen other players named in Biogenesis. Foremost among these is Yankee player Alex Rodriguez. Here the topic is a possible lifetime ban, but the player will negotiate something much shorter, unless MLB decides to suspend and go to arbitration in this case. At some point it has to do this.
The Yankees have the right to challenge the Rodriguez  contract as well and it is through breach of contract actions that MLB and its teams will realize real clout in the drug use cases.